People v. Dailey, 2018 IL App (1st) 152882 (September). Episode 539 (Duration 7:14)

One hand to hand creates reasonable suspicion for a traffic stop.

Charges

Defendant was charged by information with the offense of being an armed habitual criminal, possession of a controlled substance with intent to deliver, unlawful use or possession of a weapon by a felon, and possession of a controlled substance.

Issue

Prior to trial, defendant moved to quash his arrest and suppress evidence, alleging, in pertinent part, that police officers lacked probable cause to believe that defendant or anyone else in the vehicle had committed a crime “from within the vehicle.”

Sentence

The trial court denied the motion and sentenced defendant to 30 months in prison.

One Hand-To Hand

A Chicago police officer and two other officers were driving southbound when he saw a van that was stopped in the middle of the street.

The officer watched a “male black citizen” run from the sidewalk to the driver’s side window, hand the van’s driver currency, and receive “small items” in return. The person who received the items looked in the officer’s direction and then fled in one direction, while the van went in the other direction “at kind of a high rate of speed.”

The Officer testified that he observed a “very quick exchange” of “small items” and could not determine what the items were or their consistency. Although he saw currency being given to the driver of the van, he could not determine the amount. The officer acknowledged that he did not see any movement inside the van; rather, he observed defendant stick an arm out of the van and hand over small items.

The officer, who had been a police officer for 20 years, believed that he had observed a narcotics transaction.

Stop The Van

The police followed the van and curbed it.

Defendant, then exited the van. He had not been ordered to exit the vehicle. As defendant walked toward the officer, he stated “ ‘I ain’t got shit.’ ” The officers exited their vehicle at the same time. As defendant continued to approach the officers, the officer observed a “marble-size object” drop from defendant’s right hand and fall to the ground. This was 1.3 grams and contained heroin.

The officer walked past defendant and picked up the object while another officer detained defendant. He described the object as a plastic bag that had seven smaller Ziploc Baggies containing suspect heroin. This item was subsequently inventoried.

Defendant’s Statement

After defendant was placed in custody, Carey informed him of the Miranda warnings. Defendant indicated that he understood his rights and then made a statement.

Defendant stated that his mother had just passed away and that he was trying to make some money to keep his buildings. Defendant further stated that he had “a drug case in the morning” and that his attorney told him to “do anything he could to stay out of trouble.”

Defendant also stated that he had “a gun by a garage” and asked whether the officers would let him go if he showed them the gun’s location. The police and his partners then followed defendant’s directions to a certain backyard. There, defendant indicated that a gun was inside a grill. The officer exited his vehicle, walked over, reached through the fence, and opened a grill. Inside the grill was a loaded .45-caliber gun.

During a subsequent conversation, defendant was asked why he had the handgun. He indicated that “the Nashes were mad that he was making money and he was afraid they were going to pop him off.”

Terry Stop

We analyze the reasonableness of traffic stops pursuant to the princip...

People v. Walker, 2018 IL App (4th) 170877 (September). Episode 536 (Duration 10:58)

Turns out we’ve been misreading the “proper turn” statute all along.

Gist

Defendant was stopped for an improper left turn and received a ticket for driving while his license was revoked (625 ILCS 5/6-303).

He filed a motion to suppress evidence from the stop, asserting the police officer who stopped him lacked reasonable, articulable suspicion defendant had violated the law.

State Argued

The State argued defendant was required to turn into the nearest westbound lane pursuant to section 11-801 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11­ 801). Because defendant did not do so, the traffic stop was valid.

According to the State, section 11-801(a)(2) unambiguously required defendant to enter the leftmost lane legally available when he executed the left turn in this case. In the alternative, the State argues section 11-801(a)(2) is ambiguous.

The Turn

Around 12:30 a.m. on defendant drove his car out of a gas station by making a right turn onto Hershey Road in Bloomington, Illinois. Defendant then proceeded north on Hershey Road, eventually moving into the left turn lane as he approached the intersection of Hershey Road and Empire Street.

The traffic light was red, and defendant stopped at the intersection.

When the light turned green, defendant made a left turn onto Empire Street, exiting the intersection into the farthest available westbound lane, which was the northernmost lane. After making his left turn, defendant was proceeding in a westerly direction on Empire Street, which had two lanes for westbound traffic.

Immediately after defendant exited the intersection, an officer stopped defendant for making an improper left turn because defendant did not exit the intersection into the nearest westbound lane of traffic on Empire Street.

Required Position And Method Of Turning

Section 11-801(a)(2) provides the following:

“(2) The driver of a vehicle intending to turn left at any intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and after entering the intersection, the left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

625 ILCS 5/11-801(a)(2).

The first sentence of section 11-801(a)(2) is a compound sentence and states

(1) the law as to what lane—“the extreme left-hand lane”—a driver must be in when approaching an intersection to make a left turn and

(2) the law as to what lane—“a lane lawfully available to traffic moving in such direction upon the roadway being entered”—the driver should use when exiting the intersection.

The second sentence of subsection (a)(2), which is the focus of the State’s argument, states the law as to what the driver should do within the intersection: “Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

Analysis

Pursuant to a plain reading of section 11-801(a)(2), which we do not find to be ambiguous, defendant did not violate the law by exiting the intersection into the farthest westbound lane of traffic on Empire Street. For this court to agree with the State’s interpretation of this subsection, we would have to depart from the plain language of the statute by ...

People v. Thomas, 2018 IL App (4th) 170440 (August). Episode 533 (Duration 18:57)

The court takes the time to go through the signs of drug trafficking interdiction officers are trained to look for.

Charges

Count I charged defendant with trafficking in cannabis (more than 2500 grams) (720 ILCS 550/5.1(a)), count II charged him with unlawful possession of cannabis with the intent to deliver it (more than 5000 grams) (id. § 5(g)), and count III charged him with unlawful possession of cannabis (more than 5000 grams) (id. § 4(g)).

Issue

Defendant moved to suppress the introduction of the cannabis as evidence against him. His motion argued that the police officer who pulled him over for an obstructed windshield “unreasonably prolonged the duration of the stop,” thereby subjecting him to an “unlawful seizure.”

The Video

The video shows that when the Deputy walks up to the driver’s side of the SUV, he first requests defendant’s driver’s license and proof of insurance.

He asks defendant, “You from Washington?”

Then tells him to take the bandana off the rearview mirror because it obstructs his vision. Defendant removes the bandana. 

The deputy asks defendant, “Where you headin’?” and “Travellin’ straight through?” A semi goes by on the highway, drowning out defendant’s answer. Then he asks defendant, “How long you plan on bein’ there?”

It is still difficult to hear defendant, but he seems to answer either “a few days” or “two days.”

He asks defendant, “[unintelligible] know you’re coming?” and then, “Anybody know you’re comin’?” Defendant answers, “Yeah.” The deputy returns to his squad car.

The dispatcher can be heard stating on the radio: “Kentucky for Joshua Thomas, male white, 6 foot, 225, born in ’79, multiple for traffic, also multiple for drug trafficking and [unintelligible].” 

Still On The Video

Deputy again approaches the SUV.

At his request, defendant pulls forward, past the guardrail and the overpass. The deputy goes to the passenger side of the SUV with what appears to be documents in his hand. He leans into the front passenger window, so that his forearms go into the open window, and tells defendant, “Ah, the traffic stop’s over, ah, you’re free to go, all right.”

Questions Keep Coming

The deputy then withdraws from the window, without the documents, and asks him, “Ahm, you said you’re going to see ***Alabama?” Defendant answers, “Yes, sir.”

The deputy asks him, “How old’s your daughter?” “She 14,” defendant replies. Deputy says, “Fourteen. OK. She does know you’re comin’?” “Yes,” defendant answers. He replies, “OK. All right. Um, did you get arrested in Kentucky a while back?”

Defendant says, “Yeah. It’s been a long time ago.” The deputy asks him, “What was that for?” Defendant explains he used to have a “bad habit” and that he “went down a bad path” but that he had “changed [his] life” and “now [taught] martial arts” to “law enforcement and military.”

Deputy makes appreciative noises.

Here We Go The Big Question

Then deputy tells defendant, “Um, we’re out working a drug interdiction detail today. I’m not accusing you of anything. Do you have any contraband in the car, any large amounts of money, firearms, anything like that?” Defendants denies having any of those things.

Deputy then asks him, “No? Would it be OK if I searched your car?”

Defendant responds, “What’d you pull me over for?”

Deputy answers, “I pulled you over for having an obstructed windshield.” Defendant asks, “You said I’m free to go?” Deputy says, “Yeah.” Defendant says, “All right, well, thank you, sir.”

Deputy says, “All right. Have a safe trip.”

Defendant says, “All right, you have a good one.”

The plain view doctrine allows police to seize property without a warrant if its criminality is readily apparent.

The doctrine requires that:

(i) The officer be lawfully in a position from which he observes the property,(ii) The incriminating character of the property is immediately apparent, and(iii) The officer had a lawful right of access to the property.

The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.

Incriminating Character Not Always Immediately Apparent

The Supreme Court has described “immediately apparent” as “an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary.” Texas v. Brown, 460 U.S. 730, 741 (1983).

Essentially, the “immediately apparent” element hinges on a probable cause determination; it does not require a law enforcement officer to know that an item is contraband or evidence of a crime. See People v. Jones, 215 Ill. 2d 261, 277 (2005).

The appropriate question is would a reasonable person in that officer’s position believe that a crime was being or had been committed?

Search & Seizure Resource Page

To see more

Illinois Search And Seizure Resources and case law go here.

Plain View Doctrine Examples

Below are plain view doctrine examples taken from the the case law.

People v. California

In Horton v. California, 496 U.S. 128, 136-37 (1990), the Supreme Court officially adopted a long-recognized standard that, for police to properly seize evidence in plain view, its “incriminating character” must be immediately apparent.

People v. Humphrey

In People v. Humphrey, 361 Ill. App. 3d 947 (2005) a police officer stopped a motorist for speeding. During the stop, the officer noticed a container holding hundreds of pills near the passenger’s feet.

The court held that the officer improperly seized the pills because he did not know that they contained pseudoephedrine or whether possessing the pills constituted a crime.

People v. Lee

People v. Lee, 2018 IL App (3d) 160100 (August). Episode 529 (Duration 4:49)

The officer said the baggie looked like it had oatmeal in it, later testing revealed it to be cocaine.

Police had a warrant to search defendant’s home. They suspected he was involved in a shooting.  Sterling police investigated defendant’s involvement in a shooting.

The Drugs

A Detective found drugs underneath defendant’s bed sheets after he pulled back defendant’s bed sheets. It was a knotted, plastic bags that contained a brown, powdery substance.

Issue

Defendant claimed that the substance’s incriminating character was not immediately apparent because the detective admittedly did not know that the substance contained cocaine.

Holding

The court held this officer had probable cause to seize the substance the moment he discovered it hidden beneath defendant’s bed sheets in packaging commonly used to store illicit d...

People v. Varnauskas, 2018 IL App (3d) 150654 (July). Episode 521 (Duration 24:46)

What does the new license plate obstruction statute say?

Gist

2 kilos of heroin and 1 kilo of cocaine were found under defendant’s hood. He was sentenced to 40 years on prison.

Facts

Defendant was stopped because his rear license plate was obscured by an empty bicycle rack attached to the car. It’s quite clear that the straps were hanging down so low that the license plate was obstructed and that only two digits of the license plate could be read.

During the traffic stop a drug detection dog gave a positive alert for the presence of drugs in defendant’s vehicle. The officer obtained a rental agreement for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later.

Before The Search

The trooper asked defendant to sit in the front passenger seat of his squad car so that he could speak with defendant and determine if defendant was authorized to drive the vehicle.

The officer obtained a rental agreement for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later.

At the same time, the trooper checked for defendant’s driver’s license information via his telecommunications system. The trooper received information that defendant had a valid driver’s license. Defendant indicated he was coming from Colorado and the vehicle had been rented by his friend, in Los Angeles, California.

Defendant also indicated that he had flown into Los Angeles and was traveling via the car to see his mother in Connecticut. Defendant was unable to specify which day he had flown into Los Angeles and was not sure if he was going to return the rental vehicle to California.

Defendant told police that there was no bicycle on the bicycle rack because he had sold it in Colorado.

Trooper Jarrod Johnson arrived on scene and continued to fill out a warning ticket for defendant while Veryzer walked his canine partner around defendant’s vehicle.

The Drug Dog Sniff

The trooper testified regarding the procedure for walking the canine around a vehicle.

He indicated that he attaches a six-foot lead to one of the canine’s two collars and brings the canine to the front of the vehicle (within three feet of the vehicle) and places the canine in the sit position. He would then give the canine the command to “seek, find dope,” which is the canine’s trained command to look for odors of narcotics that he was trained to alert on—cocaine, heroin, methamphetamines, crack cocaine, and cannabis.

The trooper would then walk the canine around the vehicle twice counterclockwise, returning to the front the vehicle. On the second rotation of walking his canine partner around defendant’s vehicle, his canine partner came to a sudden stop at the trunk area of defendant’s vehicle.

The trooper described the canine alerting to having found narcotics as when the canine has “slowed his process, snapped his head and body back to the left, and began taking short, quick breaths.” After alerting, the canine would then sit as a final response because he is trained to sit when he positively recognizes one of the five odors that he is trained in.

Roadway Search

Another police trooper searched defendant’s vehicle on the side of the road. They searched for 20 minutes.

They conducted a cursory search of defendant’s vehicle by checking all the bags and general locations of the vehicle where drugs have been found during other vehicle searches in the past, including searching inside the bags and luggage that were in the t...

In re O.S., 2018 IL App (1st) 171765 (June). Episode 509 (Duration 7:03)

Can the odor of weed still justify a traffic stop even after the cannabis legislation?

Charges

Minor respondent O.S. was adjudicated delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a weapon and committed to the Department of Juvenile Justice for an indeterminate period of time.

Facts

During the course of an encounter with Chicago police officers, minor respondent was found to be in possession of a firearm.

The minor was a passenger in the car in the front seat. They parked in front of the building. The car was running. The windows were up. The rear seat passenger had a blunt behind his ear and another burned blunt was recovered from the vehicle.

The officer’s car pulled up diagonally in front of them. The driver was asked for his license and registration. The police asked the driver to roll down his window first, and that’s when the smell was even stronger.

Another officer then opened the door on the passenger side. The respondent got out, was patted down, and arrested for the concealed weapon that was recovered in his jacket—jacket pocket.

There is a no parking sign.

The Odor Of Cannabis

The officer said he smelled cannabis coming from the car parked in a no parking zone.

When the got to the car windows and started interacting with the passengers they again smelled an even stronger smell of marijuana. They also saw that the person sitting behind the respondent had a hand-rolled cigar in his ear.

See Also

* Episode 015 – People v. Abdur-Rhamim – Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here?

* Episode 340 – Interview With Kim Bilbrey – The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant 

* Episode 276 – People v. Kavanaugh – You Just Can’t Ignore The Stench Of Weed…And An Accident

Discovery Of The Gun

As the respondent got out of the car, he reached for his right jacket pocket. The officer said, “Don’t do that.”

The officer touched the pocket, immediately realized it was a gun, and arrested the respondent. In the rear seat, a partially smoked hand-rolled blunt was recovered.

Issue

Respondent acknowledges this legal precedent; however, he submits that the odor of marijuana can no longer furnish police officers with probable cause or reasonable suspicion of criminal activity in light of the recent amendment decriminalizing the possession of small amounts of marijuana in Illinois.

The minor submits that his constitutional right to be free from unreasonable searches and seizures was violated when police officers “seized the stopped vehicle in which he was a passenger even though the driver was merely standing temporarily in a no parking zone and the smell of burnt cannabis near the vehicle did not indicate *** criminal activity.”

The Roll Up Was A Stop

Upon review, we agree with the parties.

The manner in which the police vehicle was positioned effectively blocked the idling car from driving...

Carpenter v. United  States, SCOTUS June 2018. Episode 508 (Duration 17:52)

Carpenter v. United States Says Police Need A Warrant To Get It Your Cell Site Location Data

Police need a warrant to capture your CSLI.

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The Charge

Defendant was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence.

He was convicted and sentenced to more than 100 years in prison.

Issue

This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.

Defendant argued the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause.

Cell Site Location Information(The Technology)

Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site.

Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI).

The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas.

Wireless carriers collect and store CSLI for their own business purposes.

The Investigation

In re Maurice J., 2018 IL App (1st) 172123 (June). Episode 506 (Duration 8:18)

Officer not knowing the traffic law he says he was enforcing is not the same as being reasonably confused about the law.

Gun Case

The minor respondent was charged in juvenile court and adjudicated for UUW under 21. The minor was sent to JIDOC

Facts

Police see a car “go around a speed bump.” 

Specifically, the driver went toward the curb so that one set of tires was on the speed bump and the other set was level. Although the driver steered around the bump, he did not swerve.

The Stop & The Gun

After the traffic violation, the officer  activated the emergency equipment in order to curb the vehicle.

From 12 to 15 feet away, he “observed the front passenger pass a handgun to the rear passenger.”

The officer could see the gun because the police car was an elevated SUV and illuminated the inside of the car.

Everyone Removed

The driver and respondent, who was in the front passenger seat, were immediately removed from the car and handcuffed. The officer testified that he knew to look for the firearm “[i]n the direction [that] the offender gave it to the co-offender.”

Moreover, the officers searched the occupants and found a firearm in a purse. 

Wells was released with a traffic citation for driving around the speed bump.

Issue

On appeal, respondent first asserts that the trial court erred in denying his motion to suppress evidence because it was not reasonable for an officer to believe that the driver committed a traffic violation.

Specifically, the testimony failed to show that the car drove upon or through private property to avoid a traffic control device.

Fourth Amendment

Under the fourth amendment and the Illinois Constitution of 1970, individuals have the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV, and Ill. Const. 1970, art. I, § 6.

In addition, the stop of a vehicle for a suspected violation of law constitutes a seizure, regardless of whether the seizure is brief and is made for a limited purpose. People v. Gaytan, 2015 IL 116223, ¶ 20. Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a brief, investigatory stop if the officer reasonably believes that the individual in question committed or is about to commit a crime.

Mistakes Of Law

In Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536 (2014), the United States Supreme Court held that a reasonable suspicion can be supported by an officer’s misunderstanding of the scope of a law.

Consequently, a police officer does not violate the fourth amendment when he stops a vehicle based on an objectively reasonable, albeit mistaken, belief that the driver’s conduct leading to the stop violated traffic laws. 

This reflects that the fourth amendment permits government officials to make some mistakes.

…but

The Court stated in Heien, “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

It’s An Objective Standard

That being said, courts apply an objective standard in determining whether a police officer made a reasonable mistake of law, without examining the particular officer’s subjective understanding.

Respondent essentially contends that, even taking the officer’s account as true, the traffic stop lacked a reasonable articulable basis.

The Traffic Code On Avoiding Traffic Control Devices

Section 11-305 of the Illinois Vehicle Code states, in pertinent part,

People v. Wilkinson, 2018 IL App (3d) 160173 (June). Episode 504 (Duration 15:06)

Defendant beats back a racist aggressor; now he’s doing 3 years.

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Gist

A big white dude walks up to defendant’s front door with another guy. When Defendant gets to the door the white dude punches defendant who is African American. A struggle ensues. Defendant grabs a hammer and hits defendant in the head. Either he doesn’t stop and repeatedly hits him or the struggle ensues.

Issue

On appeal, defendant argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that defendant did not reasonably believe that the force he used was necessary to prevent great bodily harm.

The parties on appeal limit their arguments to the reasonableness of defendant’s belief that striking the victim with a hammer was necessary to prevent great bodily harm to himself.

Facts

Big white dude was jacked up.

The victim testified that he suffered fractures to his eye socket, sinus cavity, and “nose socket” as a result of the altercation. Looks like it came from one blow with the hammer.

He required 12 staples and a number of stitches. A tendon was also severed. He continued to suffer from eye spasms and headaches.

The Verdict

The State concedes “that the record in this case supports defendant’s and trial court’s beliefs that Cook was the initial aggressor. More pointedly, the State concedes that Cook punched defendant in the face. The State, however, argues that defendant used “excessive force,” or “an amount of force far greater than needed to neutralize the threat posed by Cook.”

Here, the jury was free to conclude that defendant struck the victim repeatedly in the head with a hammer while he was on top of him and the victim was trying to get away.

It follows that the jury could rationally conclude that any b...

Episode 501 (Duration 40:36) 3 criminal law cases from the Supreme Court of the United States were released in the second quarter of 2018.

Here they are…

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In This Episode…

We discuss the following cases:

* Byrd v. United States (May 2018)* McCoy v. Louisiana (May 2018)* Collins v. Virginia (May 2018)

Byrd v. United States

Driver of a rental car not on the renting papers nonetheless has an expectation of privacy.

Gist

Defendant was driving a rental car in Pennsylvania.

When the police discovered he was not on the rental agreement they told him they didn’t need his permission to search the car. They found 49 bricks of heroin and charged him in federal court.

Issue

SCOTUS granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he is not listed as an authorized driver on the rental agreement.

Facts

Defendant was given control of the car right at the rental lot after another person rented the car. Defendant was not listed as an additional driver and was prohibited from driving the car by contract. Defendant was stopped because he was driving with his hands at the 10 and 2 position, he was seated way back and it was a rental car. Further, he was very nervous and shaking with the police and admitted he had a blunt in the car.

Police sought his consent to search the car, but then just searched it.

When they found body armor defendant started to run away from the scene. He was caught and admitted there was heroin in the car.